VIGLIANO ASSOCIATES LTD v. GAINES (2025)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered June 20, 2024, which granted defendants’ motions to dismiss the complaint, unanimously affirmed, without costs.

We need not decide whether plaintiff is an intended third-party beneficiary of the contract between defendant C & J Gaines Limited and nonparty HarperCollins Publisher LLC because plaintiff has failed to show that defendants C & J Gaines Limited, Magnolia Brands, LLC, and Joanna Gaines breached the contract (see e.g. McHale v. Anthony, 41 A.D.3d 265, 266–267, 839 N.Y.S.2d 33 [1st Dept. 2007]).

The 2020 amendments to the 2017 contract did not breach section 4(k).  Words alone are not enough to establish an agency coupled with an interest;  rather, the principal must have an interest in the subject of the agency itself.  Plaintiff had no such interest here.  Section 4(k) granted plaintiff the right to receive a 7.5% commission in the proceeds from the sale of defendant author's books, but that section did not grant plaintiff a property interest in the books, the subject of the agency.  Its agency was therefore revocable (see Peter Lampack Agency, Inc. v. Grimes, 29 Misc.3d 1208[A], 2010 N.Y. Slip Op. 51749[U], *4, 2010 WL 3960602 [Sup. Ct., N.Y. County 2012], affd 93 A.D.3d 430, 939 N.Y.S.2d 409 [1st Dept. 2012]).  Thus, Magnolia did not breach the agreement when it empowered defendant United Talent Agency, LLC (UTA) “to act on [its] behalf in all matters (except receipt of payments due [Magnolia]) arising from and pertaining to th[e 2017] Agreement,” as modified by the 2020 amendment.  Moreover, that the 2020 amendment changed the number of books from five to four and the author of one of the books from Joanna Gaines to defendant Chip Gaines does not constitute a breach.  If Joanna Gaines did not want to write five books, plaintiff could not force her to do so (see American Broadcasting Cos. v. Wolf, 52 N.Y.2d 394, 401, 438 N.Y.S.2d 482, 420 N.E.2d 363 [1981]).

The court properly dismissed the second cause of action for tortious interference with contract because, as we have found, there was no breach of contract (see Foster v. Churchill, 87 N.Y.2d 744, 749–750, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996]).  Moreover, the economic interest defense applies here because UTA had a managerial contract with Magnolia's principals (the Gainses) at the time it allegedly induced a breach of contract (see Levine v. Yokell, 258 A.D.2d 296, 296, 685 N.Y.S.2d 196 [1st Dept. 1999]).

The third cause of action (equitable accounting) fails because, among other things, the substantive claims have been dismissed (see Cambridge Capital Real Estate Invs., LLC v. Archstone Enter., LP, 137 A.D.3d 593, 596, 28 N.Y.S.3d 33 [1st Dept. 2016]).